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Cooper v. Meritor, Inc.

United States District Court, N.D. Mississippi, Greenville Division

February 11, 2019




         Before the Court in these consolidated cases is the “Plaintiffs' Motion to Exclude Testimony and Opinions [of] Robert L. Powell, Ph.D.” Doc. #575.

         I Relevant Background

         These consolidated cases concern the Eastern Heights neighborhood (“Subdivision”) in Grenada, Mississippi; a neighboring industrial facility (“Facility”); and various bordering properties.

         The Facility property includes three areas of interest: (1) a former equalization lagoon on its northern border; (2) a known area of contaminant release referred to as AOC-A; and (3) another known area of contaminant release referred to as AOC-B, which is just to the west of AOC-A.

         The footprint of the Eastern Heights neighborhood may be described as a rough inverted cone shape, with the angled “bottom” pointing northwest and the round “top” pointing southeast. The round part of the cone is bordered to the southwest by the Facility, to the south by a triangular-shaped railyard property (“Railyard”) owned by the Grenada Railway, to the southeast by a stoneyard (“Stoneyard”) now owned by Dunham, Inc., and to the east by a railroad which runs south past the Subdivision and the Facility.

         To the east of the railroad is a large rectangular tract of land which the parties refer to as the Moose Lodge Road Area (“MLRA”). Four rectangular parcels of interest sit on the MLRA's western border, and run from north to south in the following order: (1) property owned by Kirk Family Holdings, LLC (“Kirk Property”); (2) property owned by Packaging Corp of America (“PCA Property”); (3) property owned by International Paper (“IP Property”); and (4) an area on the IP Property known as the former Buffing Compound Disposal Area (“BCDA”), where Facility employees disposed of chemicals in the late 1960s. These four areas are bordered to the east by Moose Lodge Road, which runs north to south through the MLRA and then turns east at the southern edge of the BCDA. A Permeable Reactive Barrier Wall (“PRB”), which was constructed in approximately 2004 to filter out chemicals from the groundwater, sits to the west between the Facility and Riverdale Creek.

         The locations described above are roughly demonstrated in Figure 1[1] below.

         Figure 1

         (Image Omitted)

         The Kirk Property has housed various structures of unknown purpose and has been used, at least in part, for storage of drums of unknown substances. The drums were stored in the southwest portion of the property. The PCA Property was used primarily as agricultural land but has since been abandoned. The Railyard has "historically been used for railcar storage."

         The various properties sit atop a layer of surficial soil, which is primarily made up of silt and clay. The surficial soil overlays an upper aquifer, which is comprised primarily of fine to coarse sand. The upper aquifer is divided in places into shallow and deep zones by a layer of intermediate clay, and overlays a layer of shaley clay, which itself overlays a lower regional aquifer comprised of sand with trace clay partings. The regional aquifer is the source of water for the area, including the Subdivision.

         II Procedural History

         On March 16, 2016, Brenda Cooper, Sylvia Caffey, Margaret Odems, Bernice Richardson, Dora Ward, Rosie Brady, Pearl Seldon, Betty Phillips, Alice Crumley, and Sylvia Cunningham filed a complaint in the United States District Court for the Northern District of Mississippi against Rockwell International Corporation and the Randall Division of Textron, Inc. Doc. #1. On June 30, 2016, United States Magistrate Judge Jane M. Virden consolidated the case with four member cases[2] for purposes of discovery and motion practice. Doc. #41. The day after consolidation, the plaintiffs filed an amended complaint against Meritor, Inc., Rockwell Automation Inc., The Boeing Company, and Textron, Inc. Doc. #43.

         In the amended complaint, the plaintiffs, residents or former residents of the Subdivision, seek damages for injuries to their homes and property caused by the operation of the Facility. The plaintiffs allege that the Facility was operated by (1) Rockwell International Corporation, the predecessor to Rockwell Automation, Inc., which itself is a predecessor to The Boeing Company, from 1965 until 1985; and (2) Randall Wheel Trim, a subsidiary of Textron, Inc., from 1985 until the present. The plaintiffs further allege that the Facility, which was used to manufacture chrome-plated wheel covers, utilized numerous chemicals, including hexavalent chromium and trichloroethylene (“TCE”), and that these chemicals were illegally placed into the environment, including the air and groundwater, with the defendants concealing such disposal.

         During the discovery process, Meritor, Boeing, and Rockwell (“Meritor Defendants”) designated Robert Powell as a retained expert witness. On August 18, 2017, Powell completed an expert report, Doc. #649-1, which the Meritor Defendants have relied on in numerous filings.

         On May 9, 2018, the plaintiffs filed a motion to exclude certain opinions and testimony of Powell. Doc. #575. The Meritor Defendants responded in opposition to the motion on May 23, 2018, and the plaintiffs replied on May 30, 2018. Doc. #648; Doc. #715.

         III Standard

         Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimon is the product of reliable principles and methods; and
(d) the expert hay is based on sufficient facts or data;
(c) the testimonys reliably applied the principles and methods to the facts of the case.

         A “district court has wide latitude when navigating the expert-qualification process.” Williams v. Manitowoc Cranes, L.L.C., 896 F.3d 607, 625 (5th Cir. 2018). “As long as there are sufficient indicia that an individual will provide a reliable opinion on a subject, a district court may qualify that individual as an expert.” Id. (quotation marks omitted).

         Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a district court has a “special obligation … to ensure that any and all scientific testimony is not only relevant, but reliable.” Bear Ranch, L.L.C. v. Heartbrand Beef, Inc., 885 F.3d 794, 802 (5th Cir. 2018) (internal alterations and quotation marks omitted). “To establish reliability under Daubert, an expert bears the burden of furnishing some objective, independent validation of his methodology.” Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 536 (5th Cir. 2013) (internal alterations and quotation marks omitted).

         When evaluating reliability, Daubert dictates that trial courts should consider: (1) “the extent to which a given technique can be tested;” (2) “whether the technique is subject to peer review and publication; (3) “any known potential rate of error, the existence and maintenance of standards governing operation of the technique; and (4) “whether the method has been generally accepted in the relevant scientific community.” Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). The Daubert factors “are not mandatory or exclusive.” Id. Rather, the district court should consider whether the enumerated factors “are appropriate, use them as a starting point, and then ascertain if other factors should be considered.” Id. (citing Black v. Food Lion, 171 F.3d 308, 311- 12 (5th Cir. 1999)).

         In addition to the specific factors enumerated in Daubert, the Advisory Committee's Note to the 2000 Amendment to Rule 702 states that the following five “factors remain relevant to the determination of the reliability of expert testimony:”

(1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an ...

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